Families must prove trust caused death of babies, despite inquiry’s damning conclusions

Families have been told they will have to prove liability for the harm caused to mothers and children before getting compensation.

This is despite the inquiry having examined each case in detail and concluding 45 babies could have survived, while 12 who sustained brain damage could have had a different outcome. It also determined 23 women who either died or suffered injuries might have had better outcomes had care been given to “nationally recognised” standards. 

However, NHS Resolution – which handles claims for clinical negligence – now says families must prove causation and a breach of duty of care before any compensation can be made. This stipulation has been made even in cases where the inquiry found different treatment would have been reasonably expected to make a difference to the outcome.

The investigation into the trust’s maternity care led by Bill Kirkup reported 18 months ago. Speaking to HSJ, its author said: “I am disappointed that East Kent families are facing these problems after everything that has happened to them. Of course, it is true that the independent investigation panel was not in a position to rule on negligence, but we did provide a robust clinical assessment of each case.

“I would have hoped that this could be taken into account in deciding to offer early settlement instead of a protracted dispute. It seems sad that a more compassionate approach has not been adopted.”

The independent investigation reported in October 2022 and examined cases from 2009 to 2020. Dr Kirkup has already criticised ministers for their initial response to his inquiry.

HSJ understands a small number of cases may have been resolved, but many other families are still going through the claims process. This is likely to involve gathering evidence from obstetric, midwifery and neonatology experts, as well as employing lawyers. Some women who lost babies have had to undergo psychological assessments which have been described as “desperately gruelling”.

One said: “It seems extraordinary that families who have usually been through the horror of some kind of sham internal investigations, in a few cases an inquest, and then an investigation by Bill Kirkup’s team are being made by NHSR to revisit it all over again. Does the NHS accept the report’s findings or not?”

HSJ asked what steps the Department of Health and Social Care had taken in response to these concerns and did not receive a specific answer.

Instead, a DHSC spokesperson said: “Minister [Maria] Caulfield has met with many families involved in the East Kent maternity inquiry over the past year to hear their concerns, alongside the local East Kent regional group, which meets regularly to ensure the recommendations and findings from the East Kent Report are being acted on, and services are improving.”

They continued: “NHSR… [has] a responsibility to settle claims fairly and promptly. This means that each case must be considered on its own merits and it is important that a proper investigation is undertaken.”

The DHSC spokesperson also added the East Kent inquiry’s terms of reference and remit did not include an investigation of legal liability and that NHSR was committed to avoiding “formal process” as much as possible to minimise distress.

In a statement, NHSR said it aimed to resolve all compensation claims quickly and fairly and on their individual merits.

It added: “This involves reviewing the evidence on each case, including inquiry findings, if they are shared, to determine whether the care was negligent and caused harm to a patient. Invariably, inquiry terms of reference are clear that they do not consider issues of negligence or compensation. We share the aim to learn from what we see through our respective investigations to improve patient safety.”

NHSR would not give details of how many cases related to East Kent it was examining. The Kirkup investigation looked at 202 cases in all. In 69 cases, it said outcomes could have “reasonably been expected to be different” while in 28 “it might have been different”.

Compensation for deaths of babies is typically low while claims relating to brain damage at birth may run into millions, as the children will require care for the rest of their lives.